21 January 2008

Eating the Plagiarism Elephant

I’ve been struggling for days now about just how to approach this post. And it’s come down to eating the plagiarism elephant one bite at a time. I sincerely apologize for the length of today’s post, but since this blog is about research, I wanted to talk a bit about an issue that seems to be causing mass confusion both on reader blogs and on writer loops: The difference between copyright violation (a prosecutable offensive) and plagiarism (an ethical violation), as well as just what constitutes plagiarism in fiction (as opposed to in the academic world of non-fiction where the cite and footnote rule).

WHAT IS COPYRIGHT

From Wikipedia: “Copyright is a legal concept . . . that gives the creator of an original work exclusive rights to it, usually for a limited period of time. At its most general, it is literally "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who (if anyone) can perform it or adapt it to other forms, to benefit financially from the work, and other related rights.”

This seems fairly self-explanatory, but just to be clear, the copyright holder is usually the author. The author has leased “the right to copy [print]” to the publisher for a specific share of the profits and for a limited amount of time. Violating the author’s copyright is a crime, in every legal sense of the word. Anything from lifting passages of text for use in your own book to writing fanfic can violate an author’s copyright. Infringe on someone’s copyright, and you may well need a lawyer.

WHAT IS PLAGIARISM?

Merriam-Webster Online Dictionary defines plagiarism thusly: “1) to steal and pass off (the ideas or words of another) as one's own; 2) to use (another's production) without crediting the source; 3) to commit literary theft; 4)to present as new and original an idea or product derived from an existing source.”

Wikipedia says plagiarism is “the practice of claiming or implying original authorship of (or incorporating material from) someone else's written or creative work, in whole or in part, into one's own without adequate acknowledgement.”

Turnitin sums it up quite succinctly: “Plagiarism is an act of fraud.”

WHAT CONSTITUTES PLAGIARISM IN FICTION?

Let’s address type No 1 first: “to steal and pass off (the ideas or words of another) as one's own”. If an author takes verbatim (or near verbatim) the work of a non-fiction source and presents it as their own (for example as dialogue, or as part of the narrative scene setting) then they have plagiarized the source. This is essentially academic plundering. The punishment for this type of plagiarism in academic circles can be severe. Not only does the offender suffer an irretrievable loss of reputation, they could lose the ability to publish their work in the future, as well as their teaching position (assuming they have one). When non-fiction is plagiarized by a fiction writer, the repercussions are likely to be less severe, as whatever damages the original author could allege, they would not really include material ones (e.g. that they had lost sales of their work due to the theft). So at most we could expect a disclaimer about the appropriation and list of sources to be added to later editions of the book. Essentially an apology, a promise never to do it again, and a disclaimer. All of which could probably have been avoided by the inclusion of a simply author’s note (assuming fraud was not the intent of said fiction writer).

No 2, “to use (another's production) without crediting the source”, somewhat overlaps the other definitions, and I would say is more likely to apply to an academic setting where one is required to footnote sources.

No 3, “to commit literary theft”, is the type that most fiction authors most dread (and want to see punished more severely from what I’ve seen and read). This type of theft usually results in the book containing the plagiarized passages being yanked from distribution and some type of monetary settlement (see the case of Kaavya Viswanathan for a clear and documented example).

A monetary settlement assumes that the plagiarized source is still under copyright. Texts in the public domain can still be plagiarized, and if said theft is discovered the book may still be yanked from distribution, but there would be no case for anyone to sue the “author” of the plagiarized work (anyone other than said author’s publisher, anyway), as there is no copyright holder to claim damages. This point seems to be causing particular confusion, so I want to give an example to help make the point clear:

If I took Jane Eyre, switched it up a bit, kept large chunks of the narrative and dialogue intact, and claimed this altered work as my own original creation, this would be plagiarism (see the recent story of the yanking of one of this year’s EPPIE finalists for more on this). If, however, I took the idea of Jane Eyre and rewrote it from the POV of the mad wife, I’d have an original work, or I would if Jean Rhys hadn’t already done this and published it as Wide Sargasso Sea. A work such as this is an example of what is known as Intertextuality (to use the SAT word).To go back to Turnitin’s simple definition, there is fraud in the first example, but not in the second.

No 4, “to present as new and original an idea or product derived from an existing source”, also overlaps with the previous entries. And it is this part of the definition that can get fanfic writers into trouble (I say can, not will, as how an author chooses to address fanfic varies widely).

HOW TO USE NON-FICTION SOURCES WITHOUT COMMITTING PLAGIARISM?

This really is the 64K-dollar question, isn’t it? Firstly, it’s useful to know that you can’t plagiarize a fact. If I write a book that features some kind of historical event, I don’t have to worry about using commonly known and agreed upon historical facts (such as the date of a battle, who the general in command of the army was, who won the battle, etc.). It would be polite to mention sources I found of value in my research, but not necessary in a CYA kind of way. If I get down into the nitty-gritty of the real life of said general I might need to be a little more careful . . .

For example, in Georgette Heyer’s An Infamous Army, she used quotes from Wellington’s letters and journals (I think that’s right) as his dialogue. There are no footnotes alerting the reader to this usage in the novel itself, but there is an author’s note where she explains what she did, why she did it, and what her sources were. Had she failed to include this information in the author’s note, she would have been on shaky ground, but, because the usage is specific (Wellington’s own words = Wellington’s dialogue), limited, and articulated, I would say she’s in the clear. No fraud is taking place.

An author is also safe using quotes, so long as the quotes are clearly shown to be such. Let us return to Heyer for an example: In Venetia, the hero and heroine have a conversation consisting mostly of quotes. They bandy them back and forth. But it is clear in context that the words the characters are saying are quotes. So again, there is no fraud, as Heyer is not claiming that she made the dialogue up (in fact, such a claim would be contrary to the intent of the scene). Again, no fraud here. She needn’t go so far as to identify the source of each quote, as one would in an academic paper (and as I have seen suggested on numerous loops and blogs). So long as the quote is shown to be such and is not so obscure as to defy verification, the author has done their job.

Things get a bit murky when we hit the vast wasteland of world building. Setting a scene, accurately describing an historical object, place, etc. In some cases there is no other way to describe it, so the description itself is essentially a fact. In others, one needs to be careful not to appropriate a research source’s descriptions too closely.

Case in point: I based one of the estates in my books loosely on the real Osterley Park (it’s sort of an “inspired by”). I’ve been to Osterley, so I was mainly relying on my memory and impression of the house, but if I’d never been and I was extremely lazy, I might have simply found a description of the house and used it.

On Wikipedia, Osterley is described thusly: “The house is of red brick with white stone details and is approximately square, with turrets in the four corners. Adam's design, which incorporates some of the earlier structure, is highly unusual, and differs greatly in style from the original construction. One side is left almost open and is spanned by an Ionic pedimented screen which is approached by a broad flight of steps and leads to a central courtyard, which is at piano nobile level.”

So my plagiarized description might have looked like this: “Winsham Court was of red brick with white stone details. It was square, with turrets in the four corners, and the Adam's design, which incorporated some of the earlier structure, was highly unusual. One side was left almost open, but was spanned by an Ionic pedimented screen, and could only be approached by a broad flight of steps leading to a central courtyard.”

Here’s how I introduce Winsham Court to the heroine of my second novel:

They traveled up the shady drive, until finally the house came into view. Imogen gave an appreciative gasp and simply stared. The seat of the Earls of Glendower was every bit as amazing as the guide books made it out to be. The house was massive; four stories of soft yellow Bath stone that reflected the light back with a soft glow. The drive circled up to a semi-circular dais of steps that led to a massive door.

Imogen smiled, and looked about, trying to take it all in.

“Wait until you see the courtyard,” George advised her.

“What’s in the courtyard?”

“It’s not what’s in it. Lyon’s grandfather had the entire thing glassed in, and then fought with the tax assessor tooth and nail. The earl insisted it was all one window, but the tax assessor wanted to charge for every pane. I think the earl died still fighting, and the current earl finally paid the bill simply to have it over and done with; much to the dowager’s annoyance.”

So not only did I get to show you a bit about the house, but I got to drop in a bit of historical data surrounding the taxation of windows (which could have been a boring info dump, but I think I managed to make it into a fun detail that shows the character of the family). Do you need to know this about the house? Of course not, but it’s one of the things that makes Winhsam Court “mine” (note: Osterley Park’s courtyard is not glassed in, and I’ve clearly changed the red brick to Bath stone).

GENRE TROPES

Laura Miller sums the issue here up nicely in her article for the New York Times: “The trick here lies in distinguishing purloined motifs from the well-worn devices of genre fiction.”

Among the many things that can not be copyrighted (like facts) are general ideas, plots, and titles. Thus, it is perfectly legal (though possibly sloppy and lazy) to outline the basic plot of a novel and write your own version. Incorporate too many specifics and you might find yourself in a courtroom or on the wrong end of a plagiarism accusation, though. All genre fiction has some kind of common usage (I think of it as the promise to the reader). In mystery, there will be a mystery, said mystery will be solved, and usually the guilty will be made to pay. Mess with this “promise” and you might find your book shifted to the mainstream/literary fiction section of the bookstore. In romance, there will be a romance, and it will have a happy ending. Kill off your hero at the end and you’ll find your book right alongside The Talented Mr. Ripley in general fiction. As the old saying goes, there’s nothing new under the sun, and this is certainly true in genre fiction. No matter how clever the twist or how beautiful the writing, at some point the basic, boiled-down plot is going to sound pedestrian (and identical to a plethora of other novels): Rake falls for virgin ingénue; Wicked Widow falls for nice guy; Uptight woman falls for bad boy; hurt protagonist leans to trust and love again; etc.

For example, a short summation of my debut novel might be: Unconventional heroine falls for conventional guy. How many books can you think of that fit that basic plot? I can think of quite a few (ranging from historical to contemporary to paranormal) the idea isn’t original, but my own interpretation and expression of it is.

THE HOMAGE

From Wikipedia: “Homage is generally used . . . to mean any public show of respect to someone to whom one feels indebted . . . It is typically used to denote a reference in a work of art or literature to another, at least somewhat widely known, work. In literature and film, an homage is similar to an allusion, except that whereas an allusion merely refers to another work, a homage typically repeats a recognizable scene or stylistic element from the other work.”

I’ve seen this topic come up on several blogs. The main thing with an homage there is no intent to fool the audience into thinking that the author thought it up all by her lonesome. The whole point is that the target audience will be, by in large, familiar enough with the original source to recognize it. Let’s go back to Heyer’s Venetia. Stephanie Lauren’s uses the same set-up (country miss encounters rakish neighbor while blackberrying on his property) in her novel Tangled Reins. Anyone familiar with Heyer would catch the reference right away. Is this plagiarism? No. It’s an homage (note: she doesn’t lift any of the wording of the scene, just the idea for it). She’s reaching back to a beloved touchstone of the genre and tipping her hat to it. I took the idea of a conversation in quotes from this same book and used it in my upcoming book, Lord Scandal. Again, this isn’t plagiarism, as the quotes are all different, and I wrote the whole scene myself (good lord but this scene was a bear to craft), but anyone who’s read Venetia will—I hope—get a warm little glow as their memory reaches back to Heyer. Anyone who hasn’t read Heyer will simply have to enjoy the repartee.

To sum up, I think Janet over at Dear Author said it best: “The plagiarist conspires against his fellow writers to claim what they have created as his own, dishonoring his own work and the professional respect among those whose reputations as writers vest in their written work – be they writers of academic scholarship, fiction, poetry, drama, essays, etc. The plagiarist’s transgression exists on a material level (conversion of another’s work) and a philosophical level – a blow against the spirit of the general community of writers and readers.”

I’m sure my fellow Hoydens will have a lot to say in the comments, considering that several of them have either been the victim of plagiarism themselves or have had a close friend victimized.

16 Comments:

Thanks Kalen -- I really appreciate the clarification of the difference between plagiarism and copyright infringement. You did a great job of addressing it on a level that applies to all aspects of creative work and using examples fiction writers could relate to.

One more comment: While the issue is very personal for the people plagiarised and accused, it is an ethical and legal matter that is diminished when complicated by name calling and insults.

It is a terrible feeling to be plagiarized. In a way, it's like having your identity stolen, your imagination raped. One definitely feels both shocked and violated. It's one situation where imitation is most certainly not the sincerest form of flattery.

I wholeheartedly second Mary's comment with reference to name calling and insults. It's the height of immaturity and unprofessionalism to permit any personal issues to enter the professional sphere, no matter the profession. And where our own profession is concerned, the fruits of our imagination are our commerce and our currency and for someone with a vendetta for whatever reason, or who has an axe to grind, trashes someone else's work, it becomes an act of professional sabotage, even terrorism.

It's a brave thing to create a work of fiction (or nonfiction, for that matter) and put it out there for the public to review. I truly think that only those who have actually done that can appreciate how it feels when someone violates it for whatever reasons, whether personal vendetta or professional laziness

Jane's summation of plagiarism as a blow against the spirit of the general community of writers and readers is simply spot on for me. Whether the victim is a fiction writer or a non-fiction writer doesn't matter in the slightest. The community at large is also being victimized, and anyone who has ever been plagiarized feels the sting of the crime anew.

Yup; ideas are not copyrightable. Nor is a title, believe it or not. You could legally title your next novel LITTLE WOMEN, if you wanted to ... but why would you, of course? If you do an Amazon search for a book title, you will often find several (both fiction and nonfiction) that share it. And movies (some that aren't even remakes) often share a title with another film.

That very question re Titles came up at a speaking engagement on Saturday.

Lots of good questions by the way including what do you do when there are two books with the same basic plot....I said all romance writers have a Beauty and the Beast story in them and they usually are completely different.

I also think all Regency writers have a Scarlet Pimpernel story in them (in Lauren's case many more than one!) and that each author's vision is generally unique to their voice.

Thanks for a thoughtful post on a complex and very important topic, Kalen! I'm glad you brought up the homage, because I love examining how writers are influenced by other writers (in a positive way that has to do with building on ideas and making them one's own). For instance, I've heard Dorothy Dunnett discuss how she was influenced by Sabatini, the Baroness Orczy, and Georgette Heyer (all writers who have influenced my own work, as has Dunnett). It's fun to examine the literary genealogy of a book, the different books that might have influenced the author when she or he wrote it. Can't wait to read your scene all in quotes--I love that scene in "Venetia"! I have a code-breaking scene in "Secrets of a Lady," that's a conscious homage to the code-breaking scene in Dorothy Sayers's "Have His Carcase" (completely different dialogue, of course, and the code Charles and Mélanie break in my book is different--and way simpler :-)--than the one Peter and Harriet break in the Sayers book).

Way impressed by your clarity, Kalen, and way fascinated by your discussion of tropes and homages.

Since 2nd century Greece, genre fiction has given its readers the pleasure of "coming home" to a familiar world, be it grove in Arcadia, village of the damned, Mayfair of the ton, remote chateau bedizened with whips and chains.

I'm also fascinated by a reference I ran across recently, to a PhD dissertation on romance, by Beth Rapp Young. According to the book that cites it, The Dangerous Lover, by Deborah Lutz:

"Young questions the hierarchy created between canonical books that warrant 'intensive' reading or 'vertical' reading . . . and those popular . . . texts such as romance that permit 'extensive' or 'horizontal' reading -- 'one which relies on knowledge of hundreds of texts, and which does not treat any single book as a self-contained system.'"

Mary, this is one reason I find it hard to understand authors who plagiarize. If I didn't avoid plagiarism on ethical, moral and legal grounds, I still wouldn't do it. I'd miss the control. If I even made the attempt to import someone else's words, I wouldn't be able to stop tinkering with them until they were my own.

To me that's the critical core of all these discussions. In fiction, it's not so simple as giving credit. It's about doing the work.

Not to mention the pride in your work!!! What's the point of putting something out there if it's not yours? Makes no sense to me. I just did a copyedit and agonized over several individual words. Should I say this, or say this? I wanted it perfect, just the right word. I can't begin to imagine just throwing someone else's property in there.

Great post, Kalen. A really succinct look at a troublesome and very personal subject. If you are a writer this sort of theft is VERY personal. I have to concur that it should always be handled with sober thought, class and zero personal attacks. The genre and/or writing style you despise may be someone else's one and only. The word "plagiarist" is an ugly enough term and one that will haunt a person forever. Any other names are simply inappropriate and say more about the name caller than they do about the person to which the epithet was applied.

Brava, Elena. I love what you said. As a fellow control freak when it comes to my writing, I am entirely too stubborn and too opinionated to let my voice be subverted by someone else's work. Drives my CPs crazy at times!

This was really helpful, Kalen. I intend to print it out and keep it handy. And it was also very tastefully, intellectually and brilliantly done.

Great post, Kalen! You're so much clearer than my law school professors.

One thing I couldn't resist mentioning was the idea/expression dichotomy for copyright infringement. It's not quite so clear as one would expect. You can have two people write the exact same poem-- or book (although it's hard to imagine a bizarre circumstance in which that would occur)-- and there's no copyright infringement so long as each came up with the same words independantly. On the other hand, you CAN have a situation where the actual words aren't copied, but the entire conception is so clearly another's that the courts will consider it copyright infringement. The seminal case involves a book called "The Blue Bicycle" (or something like that), which was a direct "Gone With the Wind" rip off, transmogrified to Vichy France. The characters were copied (with different names), the order of the scenes was the same, and so on. The author even thanked Margaret Mitchell in the acknowledgments! The court decided that, in this case, it was so clearly a copying of the overall conception of someone else's work that it constituted infringement of that copyright. Interesting, no? So despite the fact that everyone says ideas aren't copyrightable, if you have enough of the same ideas clustered together in the exact same way... they are.

Elena, I'm right with you on the needing my own words! I even find myself sometimes mentally rewriting other authors' lines as I read, just because they aren't phrased quite as I would have phrased them....

Thanks, Kalen, for a thought provoking post. I can't add to what you or others have so nicely said, but I whole heartedly agree with Mary---it is a hugely personal issue and I still have very mixed emotions about it.